Edley Interview Addresses Demands for Yoo’s Ouster

Cy Musiker: Students returned to class today at the law school at UC Berkeley and they returned to protests over one of their professors.

The professor is John Yoo. He served as a Justice Department lawyer during the Bush administration, and he was one of the authors of a set of memos that made the legal case for torture of suspected terrorists, including the use of water boarding. Some have called for the university to dismiss Yoo. This fall, he’s teaching one of the law school’s core classes, but in fact many law school students are eager to study with Yoo, like Collin Ward.

Ward: I’m here as a liberal and as a Democrat to learn what I can about Republicans and what they think and why they think that. There might just be something that I can get out of this class in addition to civil procedures. We’ll see how it goes.

Musiker: Yoo has other defenders, among them his boss, the dean of the law school, Christopher Edley. Dean Edley, I believe you think it would be wrong to fire John Yoo. Tell us why.

Edley: I want to emphasize that I certainly am not a defender of either his views or much of what has been covered about his conduct while working at the Justice Department. I am a defender, however, of the principles of academic freedom, which in my mind make inappropriate—indeed frightening—the prospect of judging faculty members based upon activities conducted while away from campus, unrelated to their duties as a professor.

Particularly in a case such as this, the faculty and administration of the University, frankly, are not competent to make judgments about complex facts that have nothing to do with academia or to make definitive statements about what the legal norms are, or what the moral norms are, or what international human rights conventions require. Those are things which I believe the university should take note of after some external body, whether it’s a prosecutor, a jury, a judge, that does have the subject-matter confidence to find these facts. After they act, then and only then would it be appropriate for the university to act.

Musiker: What are the limits then when intellectual freedom bumps up against ethical or moral values? What happens if a professor is off-campus but espouses racist or anti-Semitic or anti-Islamic views?

Edley: That’s exactly the problem. Or to take another example, what happens if a professor is off-campus and advocates abortion, but it happens to be in a campus where the right-to-life is considered paramount and anybody who supports abortion is viewed as complicit in murder? The bottom line, I think, is that unless a faculty member’s behavior interferes with the performance of their duty as a teacher and as a researcher, it is very dangerous to open up an inquiry based upon a political poll about his views.

Musiker: In fact, there’s a federal lawsuit claiming that Professor Yoo violated the constitutional rights of a detainee, and the Justice Department, now under President Obama, may soon issue an ethics report recommending that Yoo be referred to a state bar association, along with a colleague, for discipline because of the torture memos. So at what point do you, as dean, decide that professor Yoo has breached the confidence you have in him by committing a criminal act?

Edley: Look, it raises serious questions; everybody agrees with that. The first thing that I have to focus on is whether the students in his classes are getting a good education. And in his classes, by all reports, he plays it exactly as you would like to play it.

Musiker: I hear, in fact, his class in Civil Procedure II is over-subscribed?

Edley: It is over-subscribed because he’s perceived as an excellent teacher. He presents not only his views but competing views. He does what you would expect a professor at a world-leading university to do. The fact that he is, in my judgment, wrong, or the fact that he went to Washington and espoused views with which I disagree, and with which I think the vast bulk of academics disagree, is not in itself grounds for dismissing a faculty member at a university. Unpopularity is not sufficient. Criminality of a high order would be.